an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Justice Antonin Scalia passed away in his sleep Saturday at a luxury resort in West Texas, according to initialreports from San Antonio media and the New York Times.
I send my most heartfelt and sincere condolences to the Justice's family and friends. I only had the pleasure of meeting Justice Scalia once, and we had a lively and amusing conversation.
Justice Scalia lived a full and significant life and became one of the most important figures in American law. Television shows and operas were written about him. He was the subject of at least two biographies during his own lifetime. Harvard Law School now has an annual lecture in his honor. There are few Justices who were more talked about and more consequential in their own time.
The occasion of his death is as monumental as it is unexpected, and it is likely to add another major issue to the presidential contest in 2016.
There will be enormous pressure on the Senate to nominate a successor this year. Nevertheless, at the moment, it seems doubtful that the currently Republican controlled Senate would allow President Obama to make a new Supreme Court appointment, tilting the balance of the Court from conservative to liberal. Instead, I expect that the Senate will do nothing, arguing that this is an election year, and hoping that the next President will be a Republican who can appoint someone like Justice Scalia.
Justice Scalia's death will also throw into uncertainty a large number of very important cases that were likely to be decided by 5-4 margins this Term. Some of these cases have already been argued, and initial votes have already been taken and opinions assigned. Others have yet to be argued. What will become of these cases is not entirely clear.
Justice Scalia did more than perhaps any judge of his generation to move the Supreme Court toward originalism in constitutional interpretation and textualism in statutory interpretation. There is no doubt that he had and will continue to have a lasting impact on many different areas of federal constitutional and statutory law. Surely he must rank among the most important and most influential Justices of the past half-century, and perhaps, depending on how the future unfolds, of all time.
In the short run, Justice Scalia will be remembered for his many staunchly conservative positions, including his opposition to gay rights and his support for Second Amendment rights.
How he will be remembered in the long run will depend very much on the direction that American politics takes. Justice Oliver Wendell Holmes, Jr., another great stylist, took many positions that people today find objectionable. But his legacy was secured by the larger direction of American politics in the decades that followed him.
Writing about judicial greatness in 2003, I speculated about whether Chief Justice Rehnquist and Justice Scalia would be considered great Justices. I wrote then:
Whether William Rehnquist will eventually be regarded as a great Justice (and Chief Justice) will, in the long run, rest on whether he has been on the right side of the most important questions he fought over as judged by future generations. . . . If, in the long run, many or most of [the positions he took] become admired, Rehnquist will be regarded as a great Justice, perhaps even one of the greatest. On the other hand, if the positions that he staked out and defended eventually are regarded as reactionary or unjust from the standpoint of the future, Rehnquist will be regarded like Justice Peckham, who wrote Lochner v. New York, or Justice Brown, who wrote Plessy v. Ferguson, or perhaps like Chief Justice Taney, whose importance cannot be denied but who had the misfortune to support slavery and was the author of Dred Scott v. Sanford.
Many of the same points apply to Rehnquist’s conservative ally on the Court, Justice Antonin Scalia. Scalia’s lively style and his very opinionated opinions suggest that he, too, is a potential candidate for greatness. Like Rehnquist, he has a coterie of devoted conservative admirers who can praise his achievements and can downplay his failings. If the politics of the future agree with a sizeable segment of Scalia’s views, his judicial sins will be washed away and he will take his place in the pantheon of Supreme Court greatness. Only time will tell whose politics eventually triumph.
In the meantime, let us pay our respects to one of the most important jurists of his age.